Data Points: Privacy & Data Security Blog

The U.S. Equal Employment Opportunity Commission (“EEOC”) is tasked with administrative enforcement of a variety of employment discrimination laws, including the Americans with Disabilities Act as amended (the “ADAAA”). The ADAAA prohibits discrimination against job applicants and employees based on “disabilities”, generally defined as a physical or mental impairment that substantially limits the individual in a major life activity. Employers of employees with a disability are required to provide disabled employee with a reasonable accommodation to enable the employee to perform the essential functions of their job, unless the reasonable accommodation would impose an undue hardship on the employer or in certain instances where the employee would still pose a direct threat to the health or safety of themselves or others that cannot be addressed by a reasonable accommodation. It is interesting, therefore, that the EEOC issued Technical Assistance on May 12, 2022 entitled The American with Disabilities Act and the Use of Software, Algorithms and Artificial Intelligence to Assess Job Applicants and Employees. The stated concern is that use of AI tools will disadvantage job applicants and employees with disabilities.  

The EEOC’s Technical Assistance is not law. It is not even regulation. But it does signal how the EEOC might deal with charges of discrimination brought by applicants and employees based on an employer’s use of AI. 

Today the Supreme Court issued an order staying the OSHA Emergency Temporary Standard (ETS) that would have required all employers with 100 or more employees to enforce Covid-19 vaccination or testing requirements. 

The Employee Benefits Security Administration of the United States Department of Labor (“EBSA”)  recently published guidance regarding cybersecurity best practices for recordkeepers and service providers responsible for plan related information technology systems and data for ERISA-covered plans, including 401k and other pension plans.

The EBSA counseled that a plan’s service providers should implement the following practices:

1. Have a formal, well documented cybersecurity program.
2. Conduct prudent annual risk assessments.
3. Have a reliable annual third-party ...

By Leslie Pedernales

The upcoming presidential election between two larger-than-life characters, each capable of stirring intense emotional reactions from both sides, is sure to produce some spirited debate around the water cooler this fall.  Many employees mistakenly assume that their expression of political speech (including nonverbal expression such as buttons or signs) is protected by the First Amendment of the U.S. Constitution.  However, it might surprise you to learn that employers generally have the right to regulate employee political speech – the level of that ...

I’ve been holding my breath waiting for the decision by the U.S. District Court for the Northern District of Chicago in the Allen v. City of Chicago overtime collective action before giving you a blog post on this case. The trial concluded almost two months ago. Because I am starting to turn blue, and because the issue is an important one, I’m not waiting any longer.

The case involves claims by Chicago police officers in the Bureau of Organized Crime seeking pay for time spent off-duty checking and responding to emails, texts and phone calls on police department issued Blackberry’s ...

One of the earliest U.S. privacy laws applicable to private entities was the Fair Credit Reporting Act (FCRA), enacted in 1970.  The FCRA placed substantial requirements on the use of background checks and credit information for consumer and employment purposes.  Those requirements included the two universal tenets of privacy protections—notice (that information will be collected and used) and consent (to the collection and use).  In 2003, the Fair and Accurate Credit Transactions Act (FACTA) provided further protections for credit information, including proper disposal of ...

A Pew Foundation study earlier this year found that 87% of all adults in the United States access the Internet or email, either through computers or mobile devices.  The same study found that of those adults, as many as 74% are using some form of social media, including Facebook, Instagram, Twitter and LinkedIn.  Given those numbers, it’s no wonder that many employers are concerned with managing their employees’ use of social media at work.

The conventional wisdom among many employers has long been that access to social media can be harmful to worker productivity.  Visions of ...

In just two years, social media password protection has gone from a privacy advocate’s dream to an employer’s harsh reality in many states.  Maryland became the first state (in 2012) to enact legislation that prevented employers from requesting the user names or passwords to an employee’s or applicant’s personal social media accounts.  Two states quickly joined Maryland in 2012 by passing similar password privacy laws, and nine more states added privacy protections in 2013.

So far in 2014, six states – Louisiana, New Hampshire, Oklahoma, Rhode Island, Tennessee and ...